Everybody Wants to Rule Your Deal – A Practical Guide to International Merger Control Dave Anderson Partner, Berwin Leighton Paisner LLP Brussels 9 October, 2007

Initial questions… Is everybody trying to rule my deal? Why is everybody trying to rule my deal? Who is trying to rule my deal? –Jurisdiction What do we have to tell them? –Notification How do I deal with all of these bodies trying to rule my deal? –Process and timing

Agenda for today Merger regimes worldwide – common features Around the world tour of major regimes – EMEA, Asia-Pacific, Americas Handling international merger control –Where: jurisdictional information needed/filing decisions –What: notification requirements –How & when: process and timing Q & A Reception

Merger control regimes – common features Jurisdiction – thresholds & exceptions Notification – contacts & forms (Brussels effect) Buyer usually files/responsible for filing Fees Suspension of closing/implementation Investigations –Phase I/phase II and duration –clear/block/change deals unwind, divestments, other commitments –Powers - failure to file on time, failure to reply to information requests, complete without clearance Appeals

Around the world in minutes –Jurisdictional thresholds –Procedure EMEA, Asia-Pacific, Americas The ICN –Guidelines and Recommended Practices –Training officials The good, the ok and the ugly

EMEA (1) EC Merger Regulation – European Commission EU Member States

EMEA (2) Switzerland Israel Russia South Africa Turkey Ukraine

Asia-Pacific Japan Korea Australia and New Zealand Welcome to the club –China – New Anti-monopoly law – comes into force 1 August, 2008 –India – New Competition Act due to come into force by mid-2008 – including mandatory merger notification –Singapore – voluntary; market share tests

The Americas USA Canada Mexico Brazil

More good, less ugly – the ICN effect ICN Guidelines and Recommended Practices on mergers – major multilateral milestone Reform successes – e.g., Belgium, Brazil, Czech, Estonia, Finland, Greece, US, Korea Overall RP implementation –2004 – less than 10% of ICN members had made changes –2006 – 50% of ICN members with merger control regimes had made changes; seven planning changes –Major jurisdictions are leading by example – US, EC, Brazil Peer pressure Training new/young agencies/officials

Your deal – practical guide Where: filing decisions What: notification requirements How & when: process and timing Substantive assessment –market power –public interest

Where - jurisdiction Deal-type/concentration analysis –Mergers, acquisitions, disposals –Watch - JVs, minority stakes, assets, outsourcing Thresholds –Turnover – main tool –Market share –Asset value Exceptions and special sectors Buyer v.s. seller

Where - turnover Calculation - general rules –Gross revenue (not profit) –Acquirer - “group” revenue –Target - only that part being sold Geographic allocation –Main rule - location of customer Last financial year –Adjust for post-year end acquisitions/disposals Special cases – financial/insurance sectors Brussels rules used most often Consider maintaining turnover information for merger control purposes

Where - market share It’s a bit early isn’t it? Yes, but… –Approx. 25 jurisdictions still use market share for establishing jurisdiction –Strong lobby from ICN and businesses to remove National market or relevant market? –Portugal v.s. Brazil Aggregation needed? –Spain v.s. UK ICN effect – Greece, Czech, Brazil, Slovenia, Portugal

Where - assessing jurisdiction Assessment boxes –Box 1 - straightforward yes/no (and voluntary/mandatory) –Box 2 - unclear – more information required? –Box 3 - technical requirement – but candidate for not filing? Box 3 – candidates for not filing –“We may have to file where? Are you crazy?” –Possible factors in considering taking a view: limited/no effects: considering levels of local sales, local assets and local overlap local sanctions/powers aggressiveness of agency risk tolerance illegitimate exercise of jurisdiction – international law Appointing coordinating outside counsel to manage jurisdictional assessment and notification process

What – notification information Deal details Parties’ details/turnover/subsidiaries Internal documents assessing deal Substantive information –Relevant markets –Market shares – parties and competitors –“Story telling” – e.g., entry barriers, buyer power Top customer, supplier, competitor contact details Power of attorney/ translations/ signatures/ authenticated copies Pushing back when needed –Some regimes focus on form not substance –The weird and wacky – when to go with it, when not to

How – timing tips Building merger control timing into deal timing –Preparation of filing –Pre-notification contacts/drafts –Suspension of closing and clock stopping –Contract – conditions/drop dead dates Getting the clocks running –How early can we file? –How early do we have to file – filing deadline jurisdictions –Priority timing filing deadline jurisdictions substantive “lead” jurisdictions longest investigation periods –Is there a short-form/simplified procedure?

How – process tips Internal team – BD/marketing/strategy –Notification information –Post-filing requests for information Aim to tell the same basic story everywhere –“Template” filing – deal/parties/substantive story –May be asked for “waivers”: int’l cooperation Previous/next filings –What did we say last time? keep filings to hand –Merger filings as part of exit/growth strategy avoiding hostages to fortune Dealing with the agencies –Their agendas, capabilities, know-how

How – post-filing/clearance tips Information requests –Fast reactions to avoid/minimise clock stopping Will third parties be involved/consulted? What form does the clearance decision take? Published – protect business secrets Advising agencies about other clearances (peer pressure/timing) Post-clearance obligations (Germany, Greece) Fees (pre/post filing)

Summary Is merger control relevant Obtaining turnover/asset information Assessing jurisdictional thresholds Identifying any lead jurisdictions on timing and substance Preparing notifications – coordination Getting the clocks running Keeping them running Clear and close!

Everybody wants to rule your deal – a practical guide to international merger control Dave Anderson Partner, Berwin Leighton Paisner LLP Brussels 9 October, 2007